Bennett v. Crane

• Decision Date: 07 December 1926
• Citation: 289 S.W. 26,220 Mo.App. 607
• Parties: FREDERICK D. BENNETT, BY HARRIS N. BENNETT, HIS GUARDIAN, APPELLANT, v. CHARLES L. CRANE, RESPONDENT.
• Court: Missouri Court of Appeals

289 S.W. 26

220 Mo.App. 607

FREDERICK D. BENNETT, BY HARRIS N. BENNETT, HIS GUARDIAN, APPELLANT, v. CHARLES L. CRANE, RESPONDENT.

Court of Appeals of Missouri, St. Louis

December 7, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

Judgment affirmed.

Abbott Fauntleroy, Cullen & Edwards and Lee W. Hagerman for appellant.

Leahy Saunders & Walther for respondent.

(1) (a) The petition in this case cannot be supported as an action at law. R. S. 1919, sec. 1220; Carter v. Shotwell, 42 Mo.App. 663. (b) The petition is demurrable for the reason that there is improperly blended therein matters of legal cognizance and matters of equitable jurisdiction. Frye v. Warren, 190 Mo.App. 193; Meyers v. Field, 37 Mo. 440; Sidney v. Mo. Land & Live Stock Co., 163 Mo. 342. (2) (a) The facts pleaded show that plaintiff and defendant occupied the relation of debtor and creditor in this case. The allegation in the petition that the defendant holds the commissions due, as trustee and agent for plaintiff, being a conclusion of law, is not admitted by the demurrer. Mulholland v. Rapp, 50 Mo. 42; Pattison's Code Pleading, secs. 260 and 926. (b) Since no other equitable relief is sought, except an accounting between debtor and creditor, the demurrer was properly sustained. An action in accounting will not lie as the sole ground for relief in equity. Vogelsang v. St. Louis Fibre Co., 147 Mo.App. 587; Sommerfield v. Hellman, 210 574; Mulholland v. Rapp, 50 Mo. 47. (c) In addition to other equitable grounds, the account must be mutual and extremely complicated. 1 R. C. L., page 223; Kaston v. Bell, 46 Ore. 308; Simley v. Bell, 17 Am. Dec. 813; White v. Cook, 51 W.Va. 201; De Voise v. H. & W. Co., 58 A. 91; 1 Corpus Juris, 619-20; Dargin v. Hewlitt, 22 S. 128; Chlein v. Kabat, 33 N.W. 771. (d) The basis of the assumption of jurisdiction by a court of equity in such cases seem to be the inadequacy of the remedy at law. This inadequacy does not exist where the code provides for an examination of the adverse party before trial and for the production of books and papers. 1 C. J. 626; Uhlman v. New York Life Ins. Co., 17 N.E. 363. (3) Plaintiff in this case has an adequate remedy at law. 1 C. J. 626; Uhlman v. New York Life Ins. Co., 17 N.E. 363. (4) Plaintiff and defendant were not partners, nor is there a fiduciary relationship existing between them. Mulholland v. Rapp, 50 Mo. 42; Pattison's Code Pleading, secs 260 and 926.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This suit was instituted by plaintiff in the circuit court of the city of St. Louis in December, 1923. The original petition was successfully demurred to, and thereafter plaintiff filed his first amended petition to which a demurrer was also sustained. Thereafter, by leave of court, the second amended petition was filed, to which, again, the court sustained a demurrer. The grounds in the last demurrer were that the petition did not state a cause of action either at law or equity against defendant, and, second, that the petition did not state a cause of action in equity. Having so sustained the demurrer, the court, nisi, ruled that since three demurrers to the petition had been sustained there should be a final judgment under the statute in favor of the defendant, and accordingly such judgment was entered. After appropriate motions, plaintiff brings the case here on appeal to review the action of the court on the demurrer.

Since the sole question on this appeal drives at the second amended petition, we set same out in full, as follows:

"Now comes the plaintiff in the above-entitled cause and by leave of court first files this, his second amended petition, and for his cause of action against the defendant states:

"First. Plaintiff states that Frederick D. Bennett suffered injuries on the 25th day of September, 1916, which rendered him mentally incompetent and unable to manage his affairs, and that by proper proceedings had and held in the probate court of the city of St. Louis the said Frederick D. Bennett was adjudged to be incompetent and a person of unsound mind, and that Mrs. Frederick D. Bennett was appointed guardian of the said Frederick D. Bennett; that on the day of March, 1917, said Mrs. Frederick D. Bennett died, and Frank X. Hiemenz was duly appointed guardian of the estate of Frederick D. Bennett in her place; that afterwards the said Frank X. Hiemenz resigned and thereafter Harris N. Bennett was appointed guardian of the person and estate of Frederick D. Bennett, and as such he is now acting and brings this suit as guardian for and in behalf of the said Frederick D. Bennett.

"Second. Plaintiff says that the defendant, Charles L. Crane, at all times mentioned herein conducted a large insurance business in the city of St. Louis; that Frederick D. Bennett, prior to his injury, was associated with the said Charles L. Crane and was engaged in procuring insurance business for the said Charles L. Crane, and in consideration of procuring said business there was an understanding and agreement between the said Frederick D. Bennett and the said Charles L. Crane that the said Frederick D. Bennett should receive a certain per cent upon all insurance business procured through him for the said Charles L. Crane Insurance Agency and should be entitled to receive a percentage of all business procured by or through him which might thereafter be renewed with the said Charles L. Crane, and that said arrangement was in force at the time of the injury of said Frederick D. Bennett, and Charles L. Crane was then indebted to the said Frederick D. Bennett on account of said commissions in a large sum, the exact amount of which plaintiff cannot state because all the books and records and evidence relating to same are in the possession of the said Charles L. Crane.

"Third. Plaintiff further states that after the said Frederick D. Bennett received the injuries aforesaid and while Mrs. Frederick D. Bennett was acting as guardian of his person and estate, to-wit, on or about March 3, 1917, she entered into a contract and agreement with the defendant, Charles L. Crane, by which the said Charles L. Crane, in consideration of the obligations which arose on account of his control and association with Frederick D. Bennett, agreed and promised to pay her as the representative of the said estate, one-third of all commissions on all business renewed which originated through the said Frederick D. Bennett, and also one-third of any new business that might be secured through the assistance of Frank X. Hiemenz, or otherwise, and said agreement was to apply to all commissions or percentages which might be due or owing the said Frederick D. Bennett at the time of his injury and thereafter or up to and including January 1, 1919.

"Plaintiff says that during the period covered by said contract defendant, Charles L. Crane, received a large amount of business in the way of renewals of business theretofore obtained for him by Frederick D. Bennett and also received large sums of money on account of premiums received on account of new business coming to him by and through the influence of the said Frederick D. Bennett that the said Charles L. Crane has kept books of account which will show what sums are due on account of said arrangement between himself and Frederick D. Bennett and the contract of March 3, 1917; that plaintiff has called upon the said defendant for a statement of the account, but defendant has failed and neglected and refused to render to plaintiff or anyone else any statement showing the amount due, and all the books, papers, records and documents relating to same are in the sole and exclusive possession of the defendant, and for that reason plaintiff cannot state in detail the amount due, but avers on information and belief that the amount due under said contract and arrangement exceeds the sum of four thousand dollars ($ 4000). The plaintiff further avers that said Charles L. Crane collected the percentages and commissions due and owing to plaintiff under and by virtue of the arrangement herein set forth and holds the same as trustee and agent for the said plaintiff, but refuses to pay over said sums to plaintiff or to render him any statement of account relating to same, and the said defendant has admitted his liability under the contracts herein set forth and had failed and refused to make a proper accounting or settlement, and plaintiff prays that it be ordered, adjudged and decreed by the court that the defendant be compelled to make, render and satisfy an account between himself and said Frederick D. Bennett and the estate of Frederick D. Bennett, the plaintiff herein, and that plaintiffs be permitted to reply to, falsify or surcharge said account, and that a full accounting be ordered between the said plaintiff and defendant, and that plaintiff be given judgment against the...